AKLIMA BEGUM Vs. STATE OF ASSAM

JUDGEMENT

(1.) In the present petition, the petitioner has prayed for compensation to be paid by the State Government due to death of her husband - Musabir Ali in police custody. The petitioner has also prayed for a direction against the Superintendent of Police, Nagaon - Respondent No. 4 to complete the investigation in respect of Case No. 117/2014 registered at Police Station Kaki for an offence under section 302/201 of the Indian Penal Code.

(2.) Facts in short are these. The petitioner is widow of Musabir Ali and she has 7 minor children from him. On 27.8.2014 around 4.30 AM Musabir Ali was arrested for offences under Sections 302, 201 and 120B of the Indian Penal Code by the police of Police Station Kaki. At the time of arrest, Musabir Ali was aged 45 years. According to the petitioner, Respondent Nos. 6, 7 and 8 had participated in the arrest of Musabir Ali where after he was tortured in police custody by Respondent Nos. 7 and 8 at Kaki Police Station. At that time, one Nabajyoti Deka of Kaki Domimari Gaon was also present in the police lock-up. The petitioner made a report to Respondent No. 6 but he refused to accept the same. Thereafter she reported the matter to Respondent No. 4. Musabir Ali ultimately died on 28.8.2014 in police custody. The post mortem examination report filed by the State Government reveals that Musabir Ali died due to consumption of poisonous substance. The fact that Musabir Ali died in police custody on 28.8.2014 has not been disputed by the State Government and even a case No. 117/2014 for an offence under Sections 302/201 of the Indian Penal Code has been registered at Police Station Kaki. Respondent No. 4 has also in his affidavit-in-opposition virtually admitted the homicidal death of Musabir Ali in police custody. Unfortunately, for some mysterious reason, although 3 years have passed, the investigation of the case has not yet been completed by the police. On the contrary, the police have registered Case No. 112/2014 against the petitioner for an offence under Section 302 of the Indian Penal Code alleging that on 28.8.2014 she gave poisonous food to Musabir Ali on the pretext of meeting him due to which he died. We fail to understand this defence of police as why the petitioner would kill her husband from whom she has 7 children more particularly when he alone was their source of bread and butter. Be that as it may, we have no hesitation in holding that Musabir Ali died an unnatural death on 28.8.2014 while he was in police custody.

(3.) The liability of the State to pay compensation for deprivation of the fundamental right of life and personal liberty is a new liability in public law created by the Constitution and not vicarious liability or a liability in tort. For this reason, this new liability is not hedged in by the limitations, including the doctrine of sovereign immunity, which ordinarily apply to State's liability in tort. This view is strongly supported by the decision of the Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago (1978) 2 All ER 670. Section 1 of the Constitution of Trinidad and Tobago recognizes amongst other "the right of the individual of life, liberty, security of person and the right not to be deprived thereof except by due process of law". Any person alleging contravention of this right and other human rights and freedoms recognized under sections 1 and 2 can apply under section 6 for redress to the High Court which is empowered to issue appropriate orders, writs and directions for enforcement or securing the protection of provisions of the aforesaid sections. The appellant in the case was a barrister and was committed to seven days imprisonment by a judge of the High Court which committal was set aside by the Privy Council in appeal on the ground that particulars of the specific nature of the contempt were not told to the appellant and the judge had thereby failed to observe a fundamental rule of natural justice. The appellant had in the meantime applied for redress under section 6 on the ground that he was deprived of his liberty without due process of law. This application was dismissed by the High Court, but appellant again came up in appeal, to the Privy Council. The Privy Council held that section 6 of the Constitution impliedly allowed the High Court to award compensation as that may be the only practicable form of redress in some cases. The Privy Council also held that as the appellant's committal was in violation of the rules of natural justice, he was deprived of his liberty without due process of law in contravention of section 1 of the Constitution and was entitled to claim compensation from the State under section 6 thereof. In meeting the argument that a judge cannot be made personally liable for anything done or purporting to be done in the exercise or purported exercise of his judicial functions, Lord Diplock, speaking for the majority, observed: